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SUBMITTED BY:
Vikas Ghritlahre, Roll No. 168
Semester IX, B.A., LL.B (Hons.)
SUBMITTED ON:
19th October, 2016
ACKNOWLEDGEMENT
I am highly elated to carry out my research on the topic, The Seat Theory, Its Development and
Relevance in ICA. I would like to give my deepest regard to my course teacher Mr S.K Sinha,
who helped me with her immense advice, direction and valuable assistance, which enabled me to
march ahead with this topic. I would like to thank my friends, who gave me their precious time
for guidance and helped me a lot in completing my project by giving their helpful suggestion and
assistance. I would like to thank my seniors for their valuable support. I would also like to thank
the library staff and computer lab staff of my university for their valuable support and kind
cooperation.
Vikas Ghritlahre
Semester
IX
CONTENTS
1. INTRODUCTION..5
I.
RESEARCH METHODOLOGY.4
II.
OBJECTIVES4
2. CHAPTER 1....06
3. CHAPTER 210
4. CONCLUSION....16
5. BIBLIOGRAPHY AND WEBLIOGRAPHY......17
RESEARCH METHODOLOGY
.OBJECTIVES
1. To have a detailed study of the seat theory of applicability of laws in ICA
2. To explain the relevance of the aforementioned theory to International Arbitrations at
present
INTRODUCTION
Arbitration is one of the methods for the settlement of dispute which the parties agreed
voluntarily via arbitration agreement. According to the arbitration legislation and practices of
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CHAPTER I
B.
The distinctions usually take place in international arbitration practices. The parties from
different countries in their arbitration agreement agreed to submit their dispute to a permanent
arbitration institution in one country (ICC Court of arbitration in Paris, France) and the place of
arbitration in another country (Singapore). When the arbitration tribunal was composed, the
arbitrators may decided to have hearing in the third country (New York, USA) for the parties
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We could also find the distinction from the Arbitration Rules of the London Court of
International Arbitration (LCIA). Article 16 of LCIA Rules provided the following:
16.1 The parties may agree in writing the seat (or legal place) of their arbitration. Failing such a
choice, the seat of arbitration shall be London, unless and until the LCIA Court determines in
view of all the circumstances, and after having given the parties an opportunity to make written
comment, that another seat is more appropriate.
16.2 The Arbitral Tribunal may hold hearings, meetings and deliberations at any convenient
geographical place in its discretion; and if elsewhere than the seat of the arbitration, the
arbitration shall be treated as an arbitration conducted at the seat of the arbitration and any award
as an award made at the seat of the arbitration for all purposes.
16.3 The law applicable to the arbitration (if any) shall be the arbitration law of the seat of
arbitration, unless and to the extent that the parties have expressly agreed in writing on the
application of another arbitration law and such agreement is not prohibited by the law of the
arbitral seat.
The seat of arbitration played very important role in international commercial arbitration. Its
significance reflected in the following aspects.
A.
The most significance of the seat of arbitration closely related to the origin of the legal binding
force of the award. In another word, where the binding force of an award came from. Article 39
of the Japanese Arbitration Law provided that (3). The arbitral award shall state its date and
place of arbitration. (4) The arbitral award shall be deemed to have been made at the place of
arbitration. The award is considered to be made at the seat of arbitration. If the national court set
aside award made in the seat of such court, foreign court may refuse to enforce it, as provided by
Article 5 (1) (e) of the New York Convention provided.2
B.
As usual practices, the national court may only set aside its own award. As to the foreign arbitral
award, the court may decide whether to enforce it or not. According to New York Convention,
the national court to which a party applies for enforcement of foreign arbitral award, may refuse
upon the other partys application based on the court-confirmed proof, that it had been set aside
by the national court where it was made. So only the court, where the award was made, is
entitled to set aside the arbitral award.
2 The provision of Art. 5 (1) (e) of the New York Convention as following: (1)
Recognition and enforcement of the award may be refused, at the request of the
party against whom it is invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought, proof that: (e) The
award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of
which, that award was made.
7 See Kang Ming, Issues Relating to Market Access for Commercial Arbitration
Service in China, from Arbitration and Law, No.6, 2003, at 57.
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If the arbitration agreement did not provided the applied arbitration rules, any party may apply to
the national court for the determination of the place of arbitration in accordance with the local
arbitration law. For instance, Article 20 of the Model Law on International Commercial
Arbitration drafted by the United Nations Commission on International Trade Law in 1985 and
adopted by dozens of countries and regions currently now has special provision as to the
determination of the place of arbitration.
(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of
arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the
case, including the convenience of the parties.
(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may,
unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation
among its members, for hearing witnesses, experts or the parties, or for inspection of goods,
other property or documents.
Article of 28 of the Japanese Arbitration Law 8also provided clearly the basic principles for the
determination of the place of arbitration: (1) The parties are free to agree on the place of
arbitration. (2) Failing such agreement as prescribed in the preceding paragraph, the place of
arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the
case, including the convenience of the parties. (3) Notwithstanding the place of arbitration
8
Law No. 138, 2003, effective on March 1, 2004
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CONCLUSION
We could draw the following conclusion from above-analyzed:
1.
In international commercial arbitration, the seat of arbitration refers to the place, where the
award was considered to be made. It is the court, where the arbitral award was made, being
entitled to set aside the arbitral award.
2.
It is the applied arbitration rules and arbitration law that determine the seat of arbitration.
3.
According to the applied arbitration rules and law, the basic principles to determine the seat
of arbitration are: (1) The parties may agree to the place of arbitration in their arbitration
agreement. (2) If they failed to agree on it, the place of arbitration should be determined by the
arbitral tribunal or institution in accordance with the applied arbitration rules or law.
4.
Under the institutional arbitration, the seat of arbitration could or could not be the same as
the business place of such permanent arbitration institution. The deciding point is the provision
of the applied arbitration rules of this institution. Under ad hoc arbitration, the seat is decided by
the applied arbitration law.
5.
The nationality of the international arbitral award should be the state where the arbitral
Russell on Arbitration Twenty-First Edition by David St. John Sutton, John Kendall and